Russell Muirhead writes below of the advisability of electing a "bi-partisan" Speaker (which, under his formulation could even include John Boehner so long as he cut himself loose from Tea Party extremists and accepted Democratic support and the implications thereof); similarly, Norman Ornstein had an op-ed in the Washington Post several days ago first pointing out that the Constitution does not require that the Speaker be a member of the House, only someone selected by the members and then going on to suggest that the House "look beyond Capitol Hill" for its next Speaker. According to Ornstein, John Huntsman or Mitch Daniels would be desirable Speakers under present circumstances. Both are certified conservatives, but not a crazy (and, he might have added, possessing greater gravitas thank the lamentable Boehner). Otherwise, Ornstein, the co-author of a good book It's Worse Than It Looks, suggests we're going over not only a fiscal cliff, but, perhaps more seriously, a political one.

But consider the possibility that the perfect speaker is neither Huntsman nor Daniels, neither of whom has spent a day in Congress other than as a witness, but, instead, former Oklahoma Republican Representative Mickey Edwards, who has a good book of his own just published by the Yale Press, The Parties Versus the People. (Not at all coincidentally, I should add, both Ornstein and Edwards will be featured participants at the conference to take place at the University of Texas January 24-26 on "Is America Governable?") Before Edwards was defeated for re-election (thanks to a Democratic gerrymander), he had risen to the leadership cadre of the Republican Party in the House, and in the terms of the 1980's and 1990's, he was certainly thought to be conservative. Admittedly, he supported Barack Obama in 2008, though, unlike Charlie Crist, there's no reason to think that he has genuinely transferred his deepest loyalties. I suspect that, unlike some, he views the modern Republican Party as capable of redemption, but only if it moves back toward a reasonable center. I also know him to be an engaging person fully capable of working with a wide variety of people and truly committed to public service.

What is interesting about Ornstein's suggestion is that it requires no critique of the Constitution! The Constitution, correctly understood, allows a bi-partisan majority to seize control and signify its commitment by bringing in a capable outside to preside as Speaker. The parties can still choose their own majority and minority leaders, etc., but moving away from hyper-partisan Speakers would eliminate the pernicious "rule" adopted by former wrestling coach Dennis Hastert that he would bring to the floor only legislation that had the support of the substantial majority of his own Republican caucus. This, as much as anything the dreadful Newt Gingrich did, turned the House into a parliamentary-style body by completely marginalizing the minority. Along with reform of the filibuster, which also requires no constitutional amendment, we should seriously discuss the merits of Ornstein's proposal and give it real life by debating the merits of Hunstman, Daniel, Edwards, or other plausible candidates. (I'm assuming, incidentally, that any "plausible" candidate would have to be a Republican.)

UPDATE: Akhil Amar has sent me the following message, which is relevant both to the specific issue and to his general theory of integrating "the unwritten Constitution" into the written one:

I personally would be
delighted by Speaker Mickey Edwards, given that in mid-October he wrote a very
generous (indeed, rave) review of my book for the Boston Globe.

The only problem, alas, is that
given my newfound fascination with unwritten constitutionalism, there is, I
must admit, a plausible argument that Article I implicitly limits the
Speakership to sitting members, and that this implicit limit is strongly
supported by the gloss of actual practice, both prior to 1789 in England and
the colonies and the states, and after 1789 in the House itself. I need
to think more about this issue, but the foregoing argument is, as I said,
plausible to me at present. On the other hand, nothing prevents someone
outside the House from being the real boss, de facto—President Lincoln or
President Lyndon Johnson, or Rahm Emmanuel, or Mitch McConnell, or Karl Rove or
Grover Norquist or Rush Limbaugh or Mickey Edwards.

SL: This raises very interesting questions with regard to FDR's running for the third term in 1940. A chapter of Akhil's fascinating book relies on the precedents set by George Washington (and the first Congress). Indeed, the more I read about Washington, the more I admire his commitment to republicanism, as instantiated in his turning away from offers of kingship or permanent tenure as President. That being said, even if we agree that "actual practice" suggested two terms was enough, the pre-22nd Amendment Constitution didn't specify term limits, and one could make the argument, as FDR certainly did, that events in the world counseled his remaining in office. So if one believes that we are facing a genuine political/constitutional crisis because of the breakdown of our party/constitutional system as a mechanism for governance, should we really reject Edwards (or Hunstman or Daniels) merely because that would be something new in our polity?

I think however that it would be rather problematic for the President to be Speaker, simply on separation of powers grounds alone, if nothing else. This also, even if the text clearly didn't block it (a debate at Dorf on Law a few months ago involved this question) for Paul Ryan to be both President of the Senate and a sitting member of the House. I'm inclined to think it violates the spirit of the text as much as various things now deemed wrong as applied to states.

The use of a non-member as Speaker would still be problematic, but less so, and since the unwritten constitution can develop common law style, perhaps current needs can justify a suitable compromise choice that each party agrees to.

What Ornstein and Sandy mean by a "bi-partisan Speaker" is a RINO who will bring other squishy Republicans over to vote for Mr. Obama's agenda. The idea has obvious appeal to Democrats, but is completely contrary to what the voters who sent the GOP to the House want.

At the 538 blog, Nate Silver broke down the House districts, found they are highly partisan and thus the GOP is in no real danger of losing the House if they oppose Mr. Obama's policies. Rather, representatives like Boehner who adopt Democrat Hoover-style millionaire taxes as their Plan B are acting contrary to the wishes of their constituents and may very well be primaried.

Rather than a "bi-partisan Speaker," the GOP majority needs a genuine conservative Speaker who will use the power of the House to set the agenda.

Assuming that anyone apart from the Democrats want a "bi-partisan Speaker," the offered candidates are an interesting lot:

Mickey Edwards lost office because he was hip deep in the House banking scandal after kiting 386 checks.

Huntsman is a progressive whose only support in the Republican primary came from the press corps.

I have no idea why Ornstein supports Mitch Daniels, who has a reputation for taking an ax to spending and thus would have no purchase with the left dominated Democrat caucus. Heck, while at the Bush OMB, Daniels drafted a budget which would have cut spending to pay for the supposed losses from the Bush tax reforms and the GOP House refused to stop the spending spree.

"a RINO who will bring other squishy Republicans over to vote for Mr. Obama's agenda"

It's odd that conservatives, many of whom abhor the social and political systems of Western Europe, seem to want our political parties to be more like the ones found there, that is ideological parties.

"they are highly partisan and thus the GOP is in no real danger of losing the House if they oppose Mr. Obama's policies. Rather, representatives like Boehner who adopt Democrat Hoover-style millionaire taxes as their Plan B are acting contrary to the wishes of their constituents and may very well be primaried."

In the past you've laid heavy blame on Obama for not being able to woo GOP votes, but whatever faults the administration might have in this area this fact is likely why Obama has won such little cooperation.

"the GOP majority needs a genuine conservative Speaker who will use the power of the House to set the agenda"

Well, perhaps the GOP majority needs this but I don't think our country needs someone even less inclined to compromise than Boehner. Additionally, can you name a speaker in the modern era who was able to set the agenda over a recently re-elected President?

"Huntsman is a progressive whose only support in the Republican primary came from the press corps"

The only purpose of having a non-partisan Speaker would be to administer the rules in a non-partisan fashion (ie, not to interpret or change them however it happens to suit the majority at the moment). This is an interesting idea (also one that is 180 degrees from the idea of changing the Senate rules to eliminate the filibuster), but it has absolutely nothing to do with the problem you are trying to address. One wouldn't bring in Mickey Edwards or Jon Huntsman to fill such a role.

I don't see any constitutional basis for Professor Amar's suggestion that the Speaker has to be a member of the House. No doubt the framers expected that this would normally, if not invariably, be the case, but there is no obvious reason why they would have made it a requirement, and I can't see any reason to read it into the Constitution's silence on the point.

"there is no obvious reason why they would have made it a requirement"

Terms like "obvious" are subjective but the average person asked very well might think it 'obvious' that the 'speaker' of a body should be a member. In this context, this includes ensuring the person with such a legislative role was elected by the people unlike the appointment of a judge.

The VP as presiding member of the Senate is a bit curious in this regard & w/o its textual command, reasonably enough one would think the presiding member of the Senate would also be a member. The presiding member of a club, e.g., tends to be a member of said club, not some outside person.

The "reason" cited by Prof. Amar in his book is that certain norms are presumptive requirements under our Constitution as a sort of common law custom giving meaning to text, structural rules (such as federalism, separation of powers) etc. Traditional recognition and acceptance over the years re-affirm this.

This can be refuted, but unclear why it is presumptively suggested in effect to be unreasonable. mls' beliefs as to the filibuster, e.g., has some reason to it, but by the actual text of the Constitution don't seem to me binding. A somewhat more opaque argument has to be provided.

A better way to put it would be that the actual text of the Constitution IS binding here, as always, but there isn't any relevant text to anchor this proposed rule. The words just aren't there, period.

I rather like the idea of a non-member as Speaker; Lacking a vote in the chamber, there's at least the possibility of finding somebody who'd be impartial, "without a dog in the fight."

BD: "a RINO who will bring other squishy Republicans over to vote for Mr. Obama's agenda"

Mr. W: It's odd that conservatives, many of whom abhor the social and political systems of Western Europe, seem to want our political parties to be more like the ones found there, that is ideological parties.

If a political party does not faithfully adhere to a set of governing principles, what good is it?

BD: "the GOP majority needs a genuine conservative Speaker who will use the power of the House to set the agenda"

Mr. W: [C]an you name a speaker in the modern era who was able to set the agenda over a recently re-elected President?

Or in a first term for that matter. You make a good point about the expansion of de facto, if not constitutional, presidential power.

What I am suggesting is this:

The House must originate all spending, borrowing and taxing legislation. If the House holds firm on fiscal policy, there is nothing the Senate and President can do except partially shut down the government.

The House GOP has little fear of losing their majority if they pass the conservative fiscal policies the voters in their majority of districts are demanding. The Obama administration has destroyed the conservative Democrat brand that Rahm Emanuel used to temporarily take the House in 2006 and 2008.

Partially shutting down the government poses very little political threat to the GOP. Social Security and Medicare going to elderly GOP supporters are almost completely self funded and Obama cannot legally cut them off. The Constitution compels Obama to service the debt. Cutting off troops in the field during a war is a political non-starter. This leaves cutting off various individual and corporate welfare programs going primarily to Democrat constituencies.

Contrary to common wisdom, the voters gave the House back to the GOP in 1996 after Clinton shut down the government when the House GOP was in a far weaker political position than today, and Clinton ended up signing off on the Gingrich fiscal policies.

Various rules deemed constitutionally mandated are not expressly there but deemed part of the original understanding of the text, e.g., various federalism limitations such as Printz v. U.S.

A literal application of Brett's principle is possible but in no way mandated. The Constitution does not actually tell us what rules of interpretation are proper, including some rejection of the unwritten constitution "spirit of the text" mode of Amar.

"If a political party does not faithfully adhere to a set of governing principles, what good is it?"

Something like Van Buren's idea of geographical and interest group alliances to form working governments (note, it was presumed ideological purity could not be gained though alliance could). Through most of our history the parties acted this way (allowing, for example, Strom Thurmond and Henry Wallace to both be Democrats in the 1940s).

"Partially shutting down the government poses very little political threat to the GOP. Social Security and Medicare going to elderly GOP supporters are almost completely self funded and Obama cannot legally cut them off"

That's a good point, but are you forgetting about the sequestration cuts that kick in in the event of no deal? Defense and medicare hit hard there...

"The House must originate all spending, borrowing and taxing legislation."

The House must originate all legislation raising revenue. You might, I suppose, argue that borrowing raises revenue, though I don't believe it has ever been understood that way. But there's no case at all for spending bills having to originate in the House.

The Origination Clause states that all legislation raising revenue must originate in the House.

Raising revenue includes both taxing and borrowing. Borrowing revenue cannot be understood as anything else.

There is no analogous spending clause in the Constitution, but the power to raise money is understood to include the power to spend that money, thus spending bills also must originate in the House.

I understand that the Congress over the years has played fast and loose with those limitations, but they are supported by the text of the Constitution and generally recognized by Congress as all appropriations bills start with the H.R. designation.

BD: "If a political party does not faithfully adhere to a set of governing principles, what good is it?"

Mr. W: Something like Van Buren's idea of geographical and interest group alliances to form working governments...

These alliances all share governing principles like agriculture policy, etc..

Ideology is just another governing principle and interestingly our ideological divide pretty closely follows the geographic divide between urban areas and the rest of the country.

BD: Partially shutting down the government poses very little political threat to the GOP. Social Security and Medicare going to elderly GOP supporters are almost completely self funded and Obama cannot legally cut them off"

Mr. W: That's a good point, but are you forgetting about the sequestration cuts that kick in in the event of no deal? Defense and medicare hit hard there...

Not really.

These sequestration "cuts" are actually reduced increases from an ever rising baseline of discretionary spending and do not extend to entitlements like Medicare.

We will still be borrowing over 40% of our spending and sprinting head long toward sovereign insolvency.

Not necessarily at all. For instance, the Northeast wing of the party might not care a whit for farm subsidies but rather wants infrastructure spending, and the Midwestern wing might want farm subsidies and not care a whit for infrastructure, but they can form an alliance in which each side votes for the thing they don't care for in order for each to get the thing they do.

"do not extend to entitlements like Medicare"

I thought there was going to be 2% reductions in Medicare spending?

http://www.cbo.gov/publication/42754

Even if these were cuts in a greater projected spending these are going to be felt by voters, no? And defense cuts are exactly the kind of federal spending that many GOP congresspersons have in their districts.

Mr. Whiskas makes an excellent point. Or, to put it in terms that Bart understands, the GOP provides an infrastructure for people who hate gays, people who hate African Americans, people who hate Hispanics, and people who love guns. People with different interests who would not normally find common cause can all work together.

From what I understand the cuts, or decreases in planned increases, to Medicare will take the form of cuts to provider payments. I imagine that is something that will not go over well with some GOP constituents considering the way Romney and Ryan (heck even Rand Paul) squawked about such a measure. Likewise since Romney and other GOP candidates made quite a big deal in opposition to the relatively measely defense cuts propose by Obama I imagine the cuts required by sequestration will not be fun for the GOP.

While we're at it, let's get a bipartisan Majority Leader of the Senate. Sen. Reid has failed for three years straight to pass a budget. He cannot control Democrats in the Senate. Obviously, the solution is for the responsible Democrats in the Senate to reach out to the Republicans and elect a bipartisan Majority Leader.

You are correct that there is a 2% across the board cut in Medicare compensation to providers in the sequester. This is largely smoke and mirrors because Obamacare starting in 2014 is supposed to cut roughly $700 billion out of Medicare - all out of provider compensation according to the administration - to "pay" for a fraction of the massive Obamacare redistribution of wealth. Because the Obamacare "cuts" in Medicare are actually a cap on spending growth, this sequester will get rolled into the Obamacare cap and will effectively last one year.

There are also cuts in general revenue funding for the Obamacare government exchanges, which the Obama HHS has already said will be more than made up with "fees" imposed on the insurers compelled to use the exchanges and thus from our insurance premiums.

Point of clarification re this statement in your piece: "Before Edwards was defeated for re-election (thanks to a Democratic gerrymander)..."

Mickey Edwards was caught up in the anti-incumbant mood that followed the House banking scandal, as reported in the NYTimes in August 27, 1992.

"Representative Mickey Edwards was swept out of Congress in the Republican primary Tuesday after a campaign that he spent apologizing for being one of the worst offenders in the House check-overdraft scandal.

Mr. Edwards, who has served eight terms and is the fourth-ranking Republican in the House, finished third in a field of five candidates with 26 percent of the vote.

Bill Price, a former Federal prosecutor, won 37 percent of the vote, and State Representative Ernest J. Istook had 32 percent. They will meet in a runoff on Sept. 15, and the winner will face Laurie Williams, a Democrat, who took 54 percent of the vote."

The GOP Majority Leader, Eric Cantor, refused to go along with the Obama tax and spend bill and would be an obvious choice.

Given his leadership on fiscal reform, I am still shaking my head at Ryan signing off on the Obama tax and spend bill. That would appear to take him out of the running for Speaker and has to thrill Team Rubio in their consideration of 2016.

The GOP needs a speaker who can unify his majority to start the massive cuts necessary to avoid sovereign insolvency in a few years and is tough enough to wait out Obama when he shuts down the government like Clinton.

Congress essentially declared war through the AUMFs and Congress budgeted and paid for all military operations. Playing games by placing war spending on one budget, but not another, was and is irrelevant.

I think it will create a great problem if the President becomes the Speaker.A speaker can be selected from the opposite party or from the civil society who plays a positive role for maintaining good government.

"You can take your choice of sources of that payment - prior tax revenues, new tax revenues after the 2003 tax reforms or borrowing."

If we came up short and we had this new significant expense wouldn't you think it is fair to say we didn't pay for that expense?

Let's say you took up golf and in the years following you were consistently in the red. Would it be fair to think place some fault on that new expense, or should we say "oh, we paid for that out of our usual income, it was this other expenditure that put us in the red?"

"If we came up short and we had this new significant expense wouldn't you think it is fair to say we didn't pay for that expense?"

Well, if I come up short, and whip out the credit card at the grocery store, the grocery store certainly will claim they got paid.

I suppose there's some (non-standard) sense of the word "paid" in which the Bush (And Obama!) wars were't "paid" for, but in that sense, something like 40% of the budget isn't being "paid" for, it's not just the wars.

Really, if you're going to get this picky, shouldn't you be outraged over the fact that the Senate hasn't passed a (Legally required) budget since Obama took office? Last couple of years, they haven't even bothered going through the motions of trying.

The shift from an open budget process vetted by committees and subject to debate and amendment to secret deals issuing bills packed full of pork literally minutes before votes during holidays to avoid voter scrutiny is an awful development.

This nonsense has been going on in Democrat controlled chambers of Congress in the new millennium with the sole exception of the FY 2008 bill delayed until April 2009 so Obama could sign off on a massive increase of the spending baseline which did not even include the "stimulus."

The cost of the Iraq and Afghan Wars is a slight slosh of about ($0.001 trillion or so) into the bucket of overall annual spending ($3.8 trillion).

"I'm not very worked up over the Senate not passing a budget, these continuing resolutions and such seem to have taken the place of that."

I wouldn't have a huge problem with the lack of a budget, either, were it not that there's this law requiring them to have a budget, which they're just blowing off. You know, Congress can't be bound by previous sessions, in the sense that they can always pass a law changing the law the previous session enacted. But that doesn't mean they're legally entitled to violate laws WITHOUT bothering to repeal or change them.

Just another example of how we have less and less of the rule of law in this nation every year.